P L D 1976 Karachi 446 (PLP)

MUHAMMAD HALEEM, J.

In this petition, the order of the Collector of Customs dated 10th June 1975 is assailed. The facts which have given rise to this petition, are that the petitioner imported from Japan "steel tubes, plain ends in Black of 8 diameter" valued Rs. 1,99,895 C & F against import licences Nos. 426060 and 44664. The goods were, according to Japanese speci fication, JIS-63444 and related to item at Serial No. 128 (h), part A of the Import Control Order bearing No. S. R. O. 945 (1)/74, dated 8th July 1974, issued by the Ministry of Commerce, Government of Pakistan. The above item thus reads :

"(h) Iron & steel pipes 73-18 II, III. 2, 73-20 T V, 83-08 T V" and tubes and fittings thereof excluding G. T. pipes and black pipes. The goods arrived in January 1975 per s. s. KAROTUA during the shipping period July 1974 to June 1975. The above description of the item corresponds to the description of goods mentioned at serial No. 73-18.111. 2 of the I. T. C. Schedule. The petitioner presented the bill of entry for the clearance of goods on 21st January 1975, which goods on examination were reported to be black iron pipes. Consequently, a show-cause notice was issued to the petitioner on 18th March 1975, by which it was intimated as to why action should not be taken under section 156 (9) of the Customs Act, 1969 read with section 3 (3) of the Import & Export Control Act, 1950, as such goods App examination were not importable for the reason that they were black steel pipes and excluded from import vide the above entry. In reply to the show-cause notice, the petitioner stated that there was a distinction between a tube and a pipe as conventionally a tube is specified by its outside diameter and thickness while the pipe is specified by its bore and thickness : vide Chamber's Encyclopaedia Vol. XIII, page 813 and that, therefore, the two terms cannot be synonymous. The explanation was not accepted and by order dated 10th June 1975 the Collector of Customs held that the goods were imported in contravention of the I. T C. Regulation and imposed a penalty of confiscation under section 156 (9) of the Customs Act read with section 3 (3) of the Import and Export Control Act. The only ground, which persuaded the Collector of Customs to hold so, was that "tubes are synonymous to pipes" and hence such import was not in order. This opinion presumably is founded on a communication dated 8th April 1975 from the Section Officer, Ministry of Commerce, Government of Pakistan, in which it was stated that there was no difference between pipes and tubes.

2. The controversy, therefore, centres around the question as to whether the goods imported were tubes or pipes. The description in the above entry maintains distinction between a pipe and a tube, for what is excluded from import are the G. I. pipes and black pipes and not the tubes. Again, the same entry is reworded in the Import Trade Control Order bearing No. S. R. O. 722 (1)/75 dated 30th June 1975, which excludes G. I. pipes and tubes and black pipes and tubes, and thus maintain the distinction. If tubes were synonymous then there was no occasion to mention tubes separately.

3. The learned counsel for the petitioner invited our attention to a passage at page 9T of the book "introduction to Mechanical Design by Jefferson, which clearly indicates a distinction between the two. It reads :

"Pipe and tubing are other products of the steel mill. Tubular pro ducts may be made of carbon and alloy steels in many different compositions for specific uses, just as are the other steel mill products. Pipe sizes are designated by nominal inside diameters in inches. Standards have been adopted by the manufacturers and users oh pipe (Table-3-6). Tubing, on the other hand, is usually based on the out side diameter and wall thickness (Table 3-7)." He next invited our attention to the Japanese specification of the goods, imported, namely JIS-Specification of the goods imported from the Hand book 1974, Ferrous Materials and Metallurgy. At page 621 different a method for the production of the goods imported as per specification JIS-G 3444 is given, whereas for galvanised steel pipes and for carbon steel pipes different methods of production are given at pages 616-653. No doubt, the goods imported were according to the Japanese specification, which were those mentioned in the bill of entry and on this point there is no dispute. We fail to see how such goods could be regarded as synonymous with black iron pipes, which was reported on examination. The Collector of Customs was probably led away to hold so by referring to British Standard and 1387: 1967, Specification for Steel Tubes and Tubulars. At page 7 under the beading `definitions', it is succinctly stated that for purposes of the British Standard the following definitions apply :

"(1) Tube. A straight tube of uniform bore. Note.-The term "tube" is synonymous with term `pipe'. What is written in the note is not of universal application for the goods were of Japanese specification and were manufactured accordingly. The note is, therefore, restricted to the British specification of steel tubes and tubulars and cannot thus, in any way, be pressed into service for removing the dis tinction between a pipe and a tube. In order to ascertain as to how Muhammad Wiqarul Hassan, the Examining Officer, bad reported the goods to be black iron pipes, we called and questioned him. He was not aware of any technical distinction between the two but stated that by taking the out side measurement of one of the pipes by a tape, he took the goods to be pipes and not tubes. If this was so, then in the case of a tube, the distinctive feature is its outside diameter and wall thickness and in this view of the matter it should have been reported to be a tube and not a pipe, but not knowing the distinction the Examining Officer took it to be a pipe. The learned Deputy Attorney-General was thus unable to satisfactorily reply as to how the goods can be treated as pipes. As such the plea of the pipe being syno nymous with the tube cannot be accepted, for it is not based on any sub stantial reason. Therefore, the contention of the learned counsel for the petitioner must prevail.

4. In the result, for the foregoing reasons we hold that the impugned order is without lawful authority and of no effect, and accept the petition a but with no order as to costs. The result was announced at the conclusion` of the arguments and the above are the reasons for it. S. Q. Petition allowed.